The title of this post is the title of this notable new article by Professor Catherine Carpenter, which is now available via SSRN. Here is the abstract:

More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary.

This particular article does not challenge the state’s legislative power to enact sex offender registration laws. Instead, this piece posits that, even if sex offender registration schemes were initially constitutional, serially amended sex offender registration schemes — what this piece dubs super-registration schemes — are not. Their emergence over the last several years demands reexamination of traditionally held assumptions that shaped the original legislation.

Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose. Ultimately, this article is a cautionary tale of legislation that has unmoored from its constitutional grounding because of its punitive effect and excessive reach.

The economic costs and uncertain benefits of tracking lots of sex offenders is spotlighted by this lengthy local piece out of Ohio, which is headlined “Keeping track of sex offenders costly: Sheriff puts the low end of costs at about $179,000 annually.” Here are excerpts:

Change in laws in the past five years have forced counties to spend thousands of dollars on registering and tracking sex offenders and the way cases are handled in court. The Butler County sheriff predicts the number of sexual offenders his office must monitor will double in five years, but despite budget woes, he believes keeping vigilant is a high priority.

On average, Sheriff Richard Jones’ office monitors 460 sex offenders. That number jumps to around 700 if juveniles and offenders who only work in the county are included. The increase in the number of sex offenders will raise the cost of monitoring sex offenders for counties, and some law experts said it will continue to clog the court system….

A low estimate of the cost of dealing with sex offenders is $179,000 annually, Jones said. That number includes salaries for the assistant prosecutor, who handles all cases involving children, the sheriff’s deputies who monitor offenders once they leave prison, mailing costs for notifications that go out to neighbors when a sex offender moves into town and costs to hunt down offenders who have skipped the state and violated reporting requirements….

The across the board changes, with reporting requirements for even the least severe of sex crimes, have also permeated the court system. Chris Pagan, a defense attorney who has represented people accused of sex crimes, says the law is clogging the docket. “It is certainly a lot more difficult to settle sex cases now than it was before,” he said. “People who are truly innocent, the fact that there would be a registration requirement is a deal stopper most of the time.”

Some question why sex offenders are required to register and submit to monitoring, but murderers, robbers, burglars and other criminals remain virtually invisible once they are released from prison. Matt Kanai, general counsel for law enforcement for the state attorney general’s office, said registration isn’t meant to punish the offenders; it is a tool for the public. Sex offenders, he said, are viewed as people who will likely attack again, so keeping tabs on them and providing their locations to the public is a service.

“Sex offenders do tend to operate in their neighborhood. Crimes like murder aren’t neighborhood specific. They are not necessarily looking at everyone that’s mowing their yard or walking down the sidewalk as their next potential victim,” Kanai said. “Murders happen in the heat of the moment or in a bar or liquor store. Those people aren’t thinking when I see people walking down the street I want to go murder that person, but sex offenders we do have that concern, that every person is a potential victim.”

However, a study by J.J. Prescott of the University of Michigan and Jonah Rockoff of Columbia University in 2010 found while registering sex offenders appears to be a good, notifying the public is not always a good thing. Public notification may scare away those inclined to be future offenders. But it appears to actually increase the likelihood that convicted sex offenders will offend again, the study shows analyzing national crime data.

NASHVILLE, Tenn. (AP) — The U.S. Department of Justice says Tennessee is in
compliance with the federal Adam Walsh Child Protection Act after reviewing its
state law, policies and procedures.

The department announced Thursday that Tennessee is one of 15 states in
compliance with the act, named for a Florida boy abducted and murdered in 1981.
His father, John Walsh, hosts the TV series “America’s Most Wanted.”

The designation means the Byrne Grant funding to the state won’t be reduced
by 10 percent, the penalty for non-compliance.

For centuries, a bedrock principle of criminal law has held that people must know they are doing something wrong before they can be found guilty. The concept is known as mens rea, Latin for a “guilty mind.”

This legal protection is now being eroded as the U.S. federalcriminal code dramatically swells. In recent decades, Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent. Today not only are there thousands more criminal laws than before, but it is easier to fall afoul of them. As a result, what once might have been considered simply a mistake is now sometimes punishable by jail time.

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